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Full text of "USA v. Aaron Swartz - Criminal Document #20"

Case 1 :1 1 -cr-1 0260-NMG Document 20 Filed 09/27/1 1 Page 1 of 7 



UNITED STATES DISTRICT COURT 
DISTRICT OF MASSACHUSETTS 



UNITED STATES 
OF AMERICA] 



Crim. No. 11-CR-10260-NMG 



AARON SWARTZ, 
Defendant. 

DEFENDANT'S MEMORANDUM OF LAW 
IN SUPPORT OF HIS MOTION TO COMPEL DISCOVERY 

Pursuant to Local Rule 116.3(G) and the September 9, 2011 order of this Court, 

Aaron Swartz moves this Court for an order compelling the government to provide 

discovery as provided by F.R. Crim. Proc. 16 and by the automatic discovery provisions 

in Rules 116.1(A)(1) and (C) and 116.2. The government has not provided a very 

substantial portion of the information and documents required to be disclosed by these 

rules. Instead, it has withheld automatically discoverable information and documents, and 

demanded that the defense agree to an unjustified protective order as a pre-condition to 

receipt of discovery. Without good cause, the government has withheld the following: 

1. Defendant's Written Statements. The defendant's written statements that are 

within its custody, possession and control, e.g., Twitter and Facebook postings, 

websites, text messages and electronic mail. The government obtained some of 

this information as the fruit of warrantless seizures of devices that the government 

asserts belong to Mr. Swartz; some are the fruit of warrant-authorized seizures of 

items that the government asserts belong to Mr. Swartz; and, some information 

was obtained in response to grand jury subpoenas to electronic communications 

providers. The defendant's written statements are subject to automatic discovery. 



Case 1:1 1-cr-10260-NMG Document 20 Filed 09/27/1 1 Page 2 of 7 

Local Rule 116.1(C)(1)(a) and Rule 16(a)(E). In paragraph A.l.a. of its August 

12, 2011 letter to defense counsel (attached hereto as Exhibit 1), the government 

states that it will offer some of these written statements in its case-in-chief. The 

defendant's written statements are also material to the defense. The government 

does not provide any "good cause" for withholding the defendant's written 

statements. 

2. Seized Electronic Data. In its August 12, 2001 letter, the government listed the 

items containing electronic data stored in electronic data storage media that it has 

seized as follows: 

Acer laptop computer recovered at MIT 

Western Digital hard drive recovered at MIT* 

HP USB drive seized from the defendant at the time of his arrest 

Apple iMac computer seized at Harvard 

Western Digital hard drive seized at Harvard 

HTC G2 cell phone seized during the search of the defendant's residence 

Nokia 2320 cell phone seized during the search of the defendant's residence 

Sony Micro Vault seized during the search of the defendant's residence 

The government has no good cause to withhold copies of the seized electronic 

data, all of which is discoverable under Rule 16(a)(1)(E). For that reason, the 

instant motion seeks an order compelling the government to provide the defense 

with copies in the form of bit-by-bit, mirror electronic images of all of the data 

natively stored on the above-listed electronic devices, including any and all 

metadata. In order to effectively defend against the indictment's allegations, Mr. 

Swartz is constitutionally entitled to an exact and complete copy of the 

discoverable electronically stored information in its native format so that he may 



* Search warrant applications for devices seized at MIT and Harvard allege probable 
cause to believe that these devices belong to Mr. Swartz and are evidence of the 
commission of the offenses charged in the indictment. 



Case 1 :1 1 -cr-1 0260-NMG Document 20 Filed 09/27/1 1 Page 3 of 7 

examine and, if appropriate, contest the provenance and substance of that 

evidence. See United States v. Briggs, 2011 U.S. Dist. LEXIS 101415 (W.D.N.Y.). 

3. Electronic Data Obtained From Non-Parties. The government's August 12, 

2011 letter states all documents and tangible objects that are material to the 

defense including, but not limited to, items obtained from MIT and JSTOR are 

being withheld. In its letter, the government asserts that: 

Because many of these items contain potentially sensitive, confidential, and 
proprietary communications, documents and records obtained from MIT and 
JSTOR, including discussions of victims' computer systems and security 
measures, we will need to arrange a protective order with you before 
inspection. 

Exhibit 1 at 2 (emphasis added). Rule 16(d)(1) authorizes this Court to enter 

protective orders concerning information provided in discovery. However, the 

movant for such a protective order must make a showing of "good cause" for the 

entry of such an order. 

The First Circuit has not provided guidance to the lower courts concerning 

the factors to be taken into account in determining whether a movant has shown 

Rule 16(d)(1) "good cause," except in cases involving disclosure of classified 

national security secrets under the Classified Information Procedure Act (CIPA). 

United States v. Pringle, 751 F.2d 419, 427-428 (1 st Cir. 1984). Certainly, the 

information being withheld is not classified as secret for national security reasons. 

There is no allegation that the withheld information concerns an endangered 

confidential informant, or that there is any evidence to support a concern about 

witness intimidation or safety. United States v. Barbeito, 2009 U.S. Dist. LEXIS 

102688 (S.D. W.Va. 2009). The third-party-sourced documents are not child 



Case 1:1 1-cr-10260-NMG Document 20 Filed 09/27/1 1 Page 4 of 7 

pornography or any other contraband. The government has no basis to claim that 
the withheld information is privileged (United States v. Thompson, 562 F.3d 387 
(D.C. Cir. 2009)(work product privilege), patented (stipulated protective order in 
United States v. Pani, 08-CR 40034-FDS), or copyrighted. Unlike, the agreed 
order entered in United States v. Gonzalez, 2009 U.S. Dist. LEXIS 50791 
(D.Mass. 2009), there is no personal financial information involved here, such as 
the credit card or social security numbers of consumers. 

The government's unsupported assertion that some part of the third-party- 
sourced information may be " potentially sensitive, confidential, and proprietary" 
falls far short of good cause. The government asserts that some of the information 
includes discussion of the computer systems of MIT and JSTOR and security 
measures. This information is discoverable because it constitutes putative 
evidence that will be publicly disclosed in this litigation, including a public trial. 
The Court's September 9, 2011 order allows Mr. Swartz to oppose the 
government's motion for a protective order but, certainly, nothing in the 
government's August 12, 2001 letter to defense counsel constitutes good cause to 
impose a protective order concerning any third-party-sourced information. 
4. Electronically-Stored Information Provided by the Defendant. The 

government is withholding and refusing to provide a copy of the electronic data 
stored in four Samsung hard drives delivered to the Secret Service by Mr. Swartz 
on June 7, 2011, at the office of undersigned counsel. The government has made 
no showing of good cause concerning this data which it would not have in its 
custody and control, but for Mr. Swartz' s delivery of it to the government. 



Case 1:1 1-cr-10260-NMG Document 20 Filed 09/27/1 1 Page 5 of 7 

5. Complete Video Recordings. Paragraph E of the government's August 12, 2011 
letter states that it has provided copies of what it considers to be the "relevant 
portions" of video recordings made on January 4 and 6, 2011, in a wiring closet in 
the basement of MIT's Building 16. Under Rule 16, Mr. Swartz is entitled to full 
and complete copies of all video recordings made in that closet including but not 
limited to recordings made at any time including, but not limited to, January 4 and 
6, 2011, because the complete records contain evidence that is material to his 
defense. 

6. Identifications. Paragraph G of the government's letter provides documents 
related to an identification procedure involving the use of a photo array but 
redacts all identifying information concerning the alleged eyewitness on the 
unfounded ground that the eyewitness has a right of privacy at this stage of the 
litigation. Rule 16 does not authorize redaction of information from discoverable 
documents. The purpose of this discovery rule is to enable the defense to move 
early in the proceeding to suppress eyewitness testimony, if the eyewitness was 
subjected to suggestive statements or activity by investigating officials. The 
purpose of the rule is undermined and rendered ineffective if the identity of the 
alleged eyewitness is withheld, because no effective investigation of the 
identification can be conducted without identifying information about the alleged 
eyewitness. Nothing in the government's letter provides any basis for defeating 
the purpose of the rule. 

7. Exculpatory Evidence. In paragraph H of the government's letter, the 
government described but refused to provide almost all of certain exculpatory 



Case 1 :1 1 -cr-1 0260-NMG Document 20 Filed 09/27/1 1 Page 6 of 7 

evidence, including evidence that, during the period covered by the indictment, 
persons other than Mr. Swartz at Harvard, MIT and China accessed the Acer 
laptop that was seized by the government, and persons other than Mr. Swartz at 
MIT and elsewhere were engaging in "journal spidering" of JSTOR data using a 
"virtual computer" that can be hosted by anyone at MIT. The government has no 
basis for withholding the electronic evidence described as exculpatory in its letter. 

The government's letter at page 6 discloses that one of its witnesses has 
publicly-filed criminal charges pending against him or her, but withholds the 
name of the witness, purportedly on privacy grounds. The government has not 
disclosed the documents that mention the publicly-filed criminal charge against 
the witness. It is obliged by rule and by constitutional principles to disclose those 
documents. There is no legal basis for redacting the documents or withholding 
the identity of the witness. The purpose of the automatic discovery rule requiring 
early disclosure of exculpatory evidence is undermined by withholding witness 
identifying information. 

Conclusion. Because the government has no valid basis for having withheld the 
discoverable information and evidence itemized in this memorandum, Mr. Swartz urges 
this Court to issue an order compelling the government to provide, or enable the defense 
to make, bit-by-bit, mirror image copies of native electronic data that constitute the 
written statements of the defendant, evidence seized by the government as listed in the 
motion, third-party-sourced evidence including, but not limited to, evidence from MIT 
and JSTOR, evidence provided to the government by Mr. Swartz, and exculpatory 
evidence. The order should also compel the government to disclose the complete video 



Case 1 :1 1 -cr-1 0260-NMG Document 20 Filed 09/27/1 1 Page 7 of 7 

recordings, and identifying information concerning the alleged eyewitness who was 
exposed to the photo array and the witness who has publicly-filed criminal charges 
pending against him or her, as well as all documents that mention those criminal charges. 

Respectfully submitted, 

/s/Andrew Good 
Andrew Good 
BBO # 201240 
Good & Cormier 
83 Atlantic Avenue 
Boston, MA 02110 
Tel. 617-523-5933 
agood@goodcormier.com 



CERTIFICATE OF SERVICE 

I hereby certify that the foregoing document filed through the ECF system will be sent to 
counsel for the government who are registered participants as identified on the Notice of 
Electronic Filing ("NEF"). 

DATED: September 27, 2011 

/s/ Andrew Good 
Andrew Good 



G:\CLIENTS\Swartz, Aaron\Pleadings - Federal Court Case\Defendant's Motion to Compel Discovery dr2.doc 



Case 1 :1 1 -cr-1 0260-NMG Document 20-1 Filed 09/27/1 1 Page 1 of 8 



Exhibit 1 



Case 1 :1 1 -cr-1 0260-NMG Document 20-1 Filed 09/27/1 1 Page 2 of 8 




U.S. Department of Justice 

Carmen M. Ortiz 

United States Attorney 
District of Massachusetts 



Main Reception: (617) 748-3100 



United States Courthouse, Suite 9200 

1 Courthouse Way 

Boston, Massachusetts 02210 



Mr. Andrew Good 
Good and Cormier 
83 Atlantic Avenue 
Boston, MA 021 10 



Re: United States v. Aaron Swartz 
Criminal No. 11 -CR-1 0260 



August 12, 2011 



Dear Counsel: 

Pursuant to Fed. R. Crim. P. 16 and Rules 1 16.1(C) and 1 16.2 of the Local Rules of the 
United States District Court for the District of Massachusetts, the government provides the 
following automatic discovery in the above-referenced case: 

A. Rule 16 Materials 

1. Statements of Defendant under Rule 16 (a)(1)(A) & (a)(1)(B) 

a. Written Statements 

The defendant's booking sheet and fingerprint card from the Cambridge Police 
Department are contained on enclosed Disk 5. 

There are numerous relevant statements not made to government agents drafted by 
Defendant Swartz before the date of his arrest contained in electronic media, such as Twitter 
postings, websites and e-mail. These are equally available to the defendant. Those that the 
government intends to use in its case-in-chief are available for your review, as described in 
paragraph A(3) below. 

Subject thereto, there are no relevant written statements of Defendant Swartz made 



Case 1 :1 1 -cr-1 0260-NMG Document 20-1 Filed 09/27/1 1 Page 3 of 8 



following his arrest in the possession, custody or control of the government, which are known to 
the attorney for the government. 

b. Recorded Statements 

The defendant made recorded statements at the time of his booking by Cambridge Police 
on January 6, 201 1 . A copy of his booking video is enclosed on Disk 7. 

c. Grand Jury Testimony of the Defendant 

Defendant Aaron Swartz did not testify before a grand jury in relation to this case. 

d. Oral Statements to Then Known Government Agents 

Defendant Aaron Swartz made oral statements at the time of the search of his apartment 
to individuals known to him at the time to be government agents. The only statements made by 
him then which the government believes at this time to be material are memorialized in the 
affidavit in support of the search warrant for his office at Harvard, a copy of which affidavit is 
enclosed on Disk 3. 

2. Defendant's Prior Record under Rule 16 (a)(1)(D) 

Enclosed on Disk 3 is a copy of the defendant's prior criminal record. 

3. Documents and Tangible Objects under Rule 16(a)(1)(E) 

All books, papers, documents and tangible items which are within the possession, custody 
or control of the government, and which are material to the preparation of the defendant's 
defense or are intended for use by the government as evidence in chief at the trial of this case, or 
were obtained from or belong to the defendant, may be inspected subject to a protective order by 
contacting the undersigned Assistant U.S. Attorney and making an appointment to view the same 
at a mutually convenient time. 

Because many of these items contain potentially sensitive, confidential and proprietary 
communications, documents, and records obtained from JSTOR and MIT, including discussion 
of the victims' computer systems and security measures, we will need to arrange a protective 
order with you before inspection. Please review the enclosed draft agreement and let us know 
your thoughts. 

4. Reports of Examinations and Tests under Rule 16 (a)(1)(F) 

Enclosed you will find Disks 1, 2, 5 & 6 containing reports of examination of the 
following: 



Case 1 :1 1 -cr-1 0260-NMG Document 20-1 Filed 09/27/1 1 Page 4 of 8 



Acer laptop computer recovered at MIT 
Western Digital hard drive recovered at MIT 
HP USB drive seized from the defendant at the time of his arrest 
Apple iMac computer seized at Harvard 
Western Digital hard drive seized at Harvard 

HTC G2 cell phone seized during the search of the defendant's residence 
Nokia 2320 cell phone seized during the search of the defendant's residence 
Sony Micro Vault seized during the search of the defendant's residence 
Four Samsung hard drives delivered to the Secret Service by Defendant Swartz and his 
counsel on June 7, 201 1 (Please note that because of the number of files contained on 
Samsung model HD154UI hard drive, serial number SI Y6J1C2800332, it has not been 
practicable to date to make a complete file list in an Excel readable format, unlike the 
other drives.) 

A fingerprint analysis report from the Cambridge Police Department with respect to the 
Acer Laptop and Western Digital hard drive recovered at MIT 
• A supplemental fingerprint analysis report with respect to these items 

While not required by the rules, intermediate as well as final forensic reports where available are 
enclosed for many of the recovered and seized pieces of equipment on Disks 6 and 1, 
respectively. 

B. Search Materials under Local Rule 1 16.1(C)(1)(b) 

Search warrants were executed on multiple pieces of electronic equipment and at multiple 
locations. Copies of the search warrants, applications, affidavits, and returns have already been 
provided to you, but are further found on Disk 3. 

Four Samsung Model HD154UI hard drives were examined following their consensual 
and unconditional delivery to the United States Secret Service on June 7, 201 1 . As an additional 
precaution, a warrant, enclosed on Disk 3, was also obtained. 

C. Electronic Surveillance under Local Rule 1 \6A(Q(l)(c) 

No oral, wire, or electronic communications of the defendant as defined in 18 U.S. C. § 
2510 were intercepted relating to the charges in the indictment. 

D. Consensual Interceptions under Local Rule 1 16.1(C)(1)(d) 

There were no interceptions (as the term "intercept" is defined in 18 U.S. C. § 2510(4)) of 
wire, oral, or electronic communications relating to the charges contained in the indictment, 
made with the consent of one of the parties to the communication in which the defendant was 
intercepted or which the government intends to offer as evidence in its case-in-chief. 



Case 1 :1 1 -cr-1 0260-NMG Document 20-1 Filed 09/27/1 1 Page 5 of 8 



E. Video Recordings 

On January 4, 201 1 and January 6, 201 1, Defendant Aaron Swartz was recorded entering 
a restricted wiring closet in the basement of MIT's Building 16. Copies of relevant portions of 
the recordings (where he is seen entering, in, or exiting the closet) are enclosed on Disk 4. 

F. Unindicted Coconspirators under Local Rule 1 16.1fQ(T)fe) 
There is no conspiracy count charged in the indictment. 

G. Identifications under Local Rule 1 16.1fC¥lVfl 

Defendant Aaron Swartz was a subject of an investigative identification procedure used 
with a witness the government anticipates calling in its case-in-chief involving a photospread 
documented by MIT Police Detective Boulter. Relevant portions of the police report of 
Detective Boulter and a copy of the photospread used in the identification procedure are enclosed 
on Disk 3. In both instances, the name of the identifying MIT student has been redacted to 
protect the student's continuing right to privacy at this initial stage of the case. On page 2 of the 
Report of Photo Array, USAO-000007, the initials beside each of the enumerated items have 
been redacted for the same reason. 

H. Exculpatory Evidence Under Local Rule 1 16.2(B)(1) 

With respect to the government's obligation under Local Rule 1 16.2(B)(1) to produce 
"exculpatory evidence" as that term is defined in Local Rule 1 16.2(A), the government states as 
follows: 

1 . The government is unaware of any information that would tend directly to negate 

the defendant's guilt concerning any count in the indictment. However, the United States is 
aware of the following information that you may consider to be discoverable under Local Rule 
116.2(B)(1)(a): 

Email exchanges between and among individuals at MIT and JSTOR as they sought to 
identify the individual responsible for massive downloads on the dates charged in the 
Indictment. While the defendant has admitted to being responsible for the downloads and 
produced one copy of most of what was downloaded on these dates, these e-mails reflect 
JSTOR' s and MIT's initial difficulties in locating and identifying him in light of the 
furtive tactics he was employing. The email exchanges will be made available in 
accordance with paragraph (A)(3) above. 

Counsel for the government understands that a number of external connections were 
made and/or attempted to the Acer laptop between January 4, 201 1 and January 6, 201 1, 
including from a Linux server at MIT and from China. The Linux server was connected 
to a medical center at Harvard periodically during the same period. While government 



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counsel is unaware of any evidence that files from JSTOR were extracted by third parties 
through any of these connections, the connection logs will be made available to you in 
accordance with paragraph (A)(3) above. 

• An analysis of one of the fingerprints on the Acer laptop purchased and used by the 
defendant cannot exclude his friend, Alec Resnick. The analysis is being produced for 
you; see paragraph (A)(4) above. 

• While not a defense or material, one or more other people used or attempted to use 
scrapers to download JSTOR articles through MIT computers during the period of 
Defendant Swartz's illegal conduct. On the evening of November 29, 2010, the network 
security team at MIT was contacted and investigated journal spidering occurring on the 
site of the Institute of Electrical and Electronic Engineers. It was tracked to a group of 
shared computers on which anyone at MIT can host a virtual machine. It was determined 
that a virtual machine had been compromised. The user was notified that scripts placed 
on it were downloading journals from JSTOR, IEEE and APS. The machines were taken 
offline early the morning of November 30, 2010. 

• The login screen on the Acer laptop when observed by Secret Service Agent Pickett on 
January 4, 201 1 identified the user currently logged in as "Gene Host." A user name is 
different from a host name, and accordingly is similarly immaterial. 

2. The government is unaware of any information that would cast doubt on the 
admissibility of evidence that the government anticipates offering in its case-in-chief and that 
could be subject to a motion to suppress or exclude. 

3. Promises, rewards, or inducements have been given to witness Erin Quinn Norton. 
Copies of the letter agreement with her and order of immunity with respect to her grand jury 
testimony are enclosed on Disk 3. 

4. The government is aware of one case-in-chief witness who has a criminal record. 

Please be advised that one of the government's prospective trial witnesses was the subject 
of a charge in Somerville District Court in 1998 of being a minor in possession of alcohol and 
that the case was dismissed the following month upon payment of court costs. The government 
intends to make no further disclosures with respect to this matter, as the criminal charge could 
have no possible admissibility under either Fed.R.Crim.P. 609 or 608(b). If you believe you are 
entitled to additional information, including the identity of the prospective witness, please advise 
the undersigned, in which event the government will seek a protective order from the court to 
permit non-disclosure. 

5. The government is aware of one case-in-chief witnesses who has a criminal case 
pending. 



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Please be advised that one of the government's prospective trial witnesses has pending 
state charges brought on July 7, 2009, involving the Abuse Prevention Act, Possession of 
Burglarious Tools, Criminal Harassment, and Breaking and Entering in the Daytime With Intent 
to Commit a felony. The events underlying the charges arise from the break-up of a personal 
relationship. The government has withheld the name of the witness and the others involved to 
protect their privacy, but will make them available along with the police reports in its possession 
subject to a protective order ensuring that the names, events and reports will not be disclosed 
publicly until the trial of this case, should the Court determine that a charge or information 
contained in the police reports is admissible for the purposes of cross-examination. 

6. Based on the timeline as the government presently understands it from Officer 
Boulter's report described in paragraph G above and contained on Disk 3, no named percipient 
witnesses failed to make a positive identification of the defendant with respect to the crimes at 
issue. As reflected in the report, three students present when the Acer computer and Western 
Digital hard drive were recovered from Building 20 by law enforcement stated that they did not 
see anyone come in and place the computer there. However, as the timeline reflects, this was not 
a failed identification, but rather that they were not percipient witnesses to the event which had 
occurred earlier. 

I. Other Matters 

The government has preliminary analysis notes prepared at Carnegie Mellon of certain 
code and files contained on the Acer Laptop, as referenced on Page 2 of SA Michael Pickett's 
Forensic Cover Report contained on Disk 1. While these are not encompassed by Rule 16 
(a)(1)(F) (formerly 16(a)(1)(D)), the government will make these available for review as 
described in section (A)(3), above, subject to the same procedures proscribed for preliminary 
transcripts in Local Rule 1 16.4 (B)(2). 

Your involvement in the delivery of four hard drives containing documents, records and 
data obtained from JSTOR creates potential issues in this case under the Rules of Professional 
Conduct, as I am sure you are aware. To avoid the potential for those issues under Rule 3.7 in 
particular, we propose a stipulation from your client that the hard drives were from him, thus 
taking you out of the middle and rendering the origin an uncontested issue under the Rule. This 
stipulation would be without prejudice to all arguments on both sides as to the admissibility of 
the drives and their contents at any proceeding. 

The government is aware of its continuing duty to disclose newly discovered additional 
evidence or material that is subject to discovery or inspection under Local Rules 1 16.1 and 
1 16.2(B)(1) and Rule 16 of the Federal Rules of Criminal Procedure. 

The government requests reciprocal discovery pursuant to Rule 1 6(b) of the Federal 
Rules of Criminal Procedure and Local Rule 116.1(D). 



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The government demands, pursuant to Rule 12.1 of the Federal Rules of Criminal 
Procedure, written notice of the defendant's intention to offer a defense of alibi. The time, date, 
and place at which the alleged offenses were committed is set forth in the indictment in this case 
a copy of which you previously have received. 

Please call the undersigned Assistant U.S. Attorney at 617-748-3 1 00 if you have any 
questions. 

Very truly yours, 

CARMEN M. ORTIZ 
United States Attorney 




Scott L. Garland 
Assistant U.S. Attorneys 



enclosures